[2] Whether the property or property benefits provided or acquired in the crime of taking property in breach of trust and taking property in breach of trust shall be the price or case for an illegal solicitation (affirmative)

[2] The property or property benefits provided or acquired in the crime of taking over property in breach of trust and taking over property in breach of trust must be the price or case for unlawful solicitation. Therefore, in the type of breach of trust requiring the existence of a party’s pro rata act, it shall not be readily concluded that the other party to the transaction performed a contractual obligation arising from the transaction, such as the acquisition price, and received and received the same in return for illegal solicitation.

Defendant 1 asserts to the effect that Defendant 1 properly acquired the patent right of this case from the Nonindicted Party, the patentee, and did not have been entrusted with the patent right of this case by the victims.

According to Article 383 subparagraph 4 of the Criminal Procedure Act, only cases where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years has an effect on the judgment of the court, may be deemed as the grounds for appeal in such cases.

However, in this case where Defendant 1 was sentenced to a more minor punishment, Defendant 1’s above assertion does not constitute a legitimate ground for appeal.

2. The point of occupational breach of trust against Defendant 2

A. The summary of this part of the facts charged is that Defendant 2 paid KRW 10 million to Defendant 1 who was in charge of the management of the patent right of this case, which is the joint ownership of the victims, by receiving the title trust from the victims, and transferred the patent right to Defendant 2 in collusion with Defendant 1, thereby allowing Defendant 2 to benefit from the market price of this case in violation of his occupational duties and thereby causing damage equivalent to the same amount to the victims.

B. The lower court found Defendant 2 guilty of having committed occupational breach of trust among the facts charged against Defendant 2 on the ground that Defendant 2 actively participated in Defendant 1’s act of breach of trust on the ground that he was aware of, or was able to have sufficiently known, that the patent right of this case was not owned by Defendant 1.

C. However, we cannot accept the above determination by the court below for the following reasons.

1) In the type of breach of trust requiring the existence of an opposite act by the opposite contractual party, considering that the opposite contractual party is basically an independent transaction with an interest separate from the one executing the act of breach of trust, a beneficiary who gains a profit from the execution of the occupational breach of trust cannot be deemed as an accomplice in the crime of breach of trust. In principle, the beneficiary can be deemed as a co-principal in the crime of breach of trust only in a case where the execution actor who did not have any intent to commit the act of breach of trust or actively participated in the act of breach of trust by inducing the act of breach of trust or participating in the whole process of the act of breach of trust (see Supreme Court Decisions 2009Do5630, Sept. 10, 2009; 2010Do7624, Oct. 27, 2011).

2) Although Defendant 2 was aware of the fact that the patent right in this case was not owned by Defendant 1, Defendant 1 was proposed to transfer the patent right to Defendant 1, he appears to have been transferred the patent right in this case for his own interest by independently trading it with an interest separate from Defendant 1, who is the actor of the act of breach of trust, and solely on the basis of the lower court’s reasoning, it is difficult to readily conclude that Defendant 2 was actively involved in the act of breach of trust, such as having Defendant 1, who did not intend to commit the act of breach of trust, instigated a resolution on breach of trust, or was involved in the entire process

D. Nevertheless, the lower court found Defendant 2 guilty on the charge of occupational breach of trust among the facts charged in the instant case on the sole basis of the foregoing circumstances. In so determining, it erred by misapprehending the legal doctrine on joint principal offense of breach of trust, thereby adversely affecting the conclusion of the judgment.

3. The taking of property in breach of trust against Defendant 1 and the taking of property in breach of trust against Defendant 2

A. The summary of this part of the facts charged is as follows: Defendant 2 demanded Defendant 1 to transfer the title of the patent right of this case to KRW 10 million; paid KRW 10 million to Defendant 1; provided property in exchange for an illegal solicitation as to another person’s duties; Defendant 1 acquired property in exchange for an illegal solicitation as to his duties.

B. The lower court convicted Defendant 1 of the charge of taking property in breach of trust and giving and receiving KRW 10 million, on the ground that the patent right of this case was not owned by Defendant 1, even though it was not owned by Defendant 1.

C. However, we cannot accept the above determination by the court below for the following reasons.

1) The crime of taking property in breach of trust is established when a person who administers another’s business obtains property or pecuniary benefits in exchange for an illegal solicitation in connection with his/her duties. It is not established unless an illegal solicitation is accepted between a donor of property or pecuniary benefits and a person who acquires property or pecuniary benefits. In determining whether a person constitutes “illegal solicitation”, the following should be comprehensively taken into account the details of the solicitation and the amount of the consideration related thereto, form, and the integrity of transactions, which are the legal interests protected by the law (see Supreme Court Decision 2010Do7380, Sept. 9, 2010). Furthermore, the property or pecuniary benefits granted or acquired in the crime of taking property in breach of trust and giving and taking property benefits in the crime of taking property in breach of trust and giving and taking property benefits in the crime of taking property in breach of trust should be considered as a consideration or case for an illegal solicitation. Therefore, in a type of crime of breach of trust requiring the existence of an opposite contractual act, it cannot be readily concluded that the opposite contractual party performed contractual

2) The facts charged in the instant case also states that the aforementioned KRW 10 million is “amount for transfer of patent right title.” According to the records, Defendant 2 can be acknowledged as having entered into a contract for transfer of patent right of this case with Defendant 1 and paid KRW 10 million to Defendant 1 at the same time with the acquisition price, after confirming the certificate that the former non-indicted 1, a patentee, transferred a patent right to Defendant 1 (a notary public who, prior to a notary public, took an oath that the contents stated in a deed signed by a private person, was true) and the patent register, etc. registered by Defendant 1 as a patentee, which was registered as a patentee.

3) Examining the foregoing facts in light of the legal principles as seen earlier, it is difficult to readily conclude that Defendant 2 paid KRW 10 million to Defendant 1 and received them in return for illegal solicitation solely on the sole basis of the circumstances indicated by the lower court.

4) Nevertheless, the lower court found Defendant 1 guilty of taking property in breach of trust among the facts charged in the instant case against Defendant 1 and of taking property in breach of trust among the facts charged in the instant case against Defendant 2. In so determining, it erred by misapprehending the legal doctrine on taking property in breach of trust and taking property in breach of trust, thereby adversely affecting the conclusion of the judgment.

4. Scope of reversal

Of the lower judgment, the part against Defendant 2 and the part against Defendant 1 should be reversed on the grounds as seen earlier. However, the part against Defendant 1 on taking property in breach of trust against Defendant 1 was sentenced to a single punishment on the ground that the remaining convictions against Defendant 1 and the concurrent crimes under the former part of Article 37 of the Criminal Act are concurrent crimes. Therefore, the lower judgment is reversed in entirety.

5. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)